LABOR REL: WENPHIL SERRANO AGABON DOCTRINE Distinguished

THE DISMISSAL IS FOR A JUST OR AUTHORIZED CAUSE BUT DUE PROCESS WAS NOT OBSERVED.

Due Process to be Observed by The Employer - For termination of the employment based on the any of the just causes for termination, the requirements of due process that an employer must comply with are: (TWIN NOTICES)

1. Written notice should be served to the employee specifying the ground or grounds for termination and giving the said employee reasonable opportunity within which to explain;
2. A hearing or conference should be held during which the employee concerned, with the assistance of counsel, if the employee so desires, is given the opportunity to respond to the charge, present his evidence and present the evidence presented against him;
3. A written notice of termination, if termination is the decision of the employer, should be served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

• For termination of employment based on authorized causes, the requirements of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional office of the Department of Labor and employment at least thirty days before the effectivity of the termination specifying the grounds for termination.

NOTE:

• Under the so-called WENPHIL DOCTRINE if the services of the employee was terminated due to a just or authorized cause but the affected employee’s right to due process has been violated, the dismissal is legal but the employee is entitled to damages by way of indemnification for the violation of the right.
• SERRANO vs. ISETANN et. al. abandoned the WENPHIL DOCTRINE and ruled that if the employee is dismissed under just or authorized cause but the affected employee’s right to due process has been violated, his dismissal becomes ineffectual. Therefore, the employee is entitled to backwages from the time he was dismissed until the determination of the justness of the cause of the dismissal.
• AGABON vs. NLRC (Nov. 17, 2004) abandoned the Serrano doctrine and REINSTATED THE WENPHIL DOCTRINE. The sanctions, however must be stiffer than that imposed in Wenphil.

Synopsis on the developments in the law.

In the last couple of decades, the Supreme Court has grappled with the legal effect and the corresponding sanction in cases where there exists a just and valid ground to justify the dismissal but the employer fails to comply with the due process requirement of the law. Prior to the promulgation in 1989 of Wenphil v. NLRC, [170 SCRA 69, February 8, 1989], the prevailing doctrine held that dismissing employees without giving them proper notices and an opportunity to be heard was illegal and that, as a consequence thereof, they were entitled to reinstatement plus full backwages. Wenphil abandoned this jurisprudence and ruled that if the dismissal was for a just or an authorized cause but done without due process, the termination was valid but the employer should be sanctioned with the payment of indemnity ranging from P1,000.00 to P10,000.00.

In 2000, the Supreme Court promulgated Serrano v. NLRC, [G.R. No. 117040, January 27, 2000], which modified Wenphil. It considered such termination “ineffectual” (not illegal) and sanctioned the employer with payment of full backwages plus nominal and moral damages, if warranted by the evidence. In case the dismissal was for an authorized cause, separation pay in accordance with Article 283 of the Labor Code should be awarded.

In 2004, the Supreme Court in Agabon v. NLRC, [G.R. No. 158693, November 17, 2004], abandoned Serrano and effectively reverted to Wenphil (known also as the “Belated Due Process Rule”) and held that a dismissal due to abandonment - a just cause - was not illegal or ineffectual, even if done without due process; but the employer should indemnify the employee with “nominal damages for non-compliance with statutory due process.” (Glaxo Wellcome Phils., Inc. v. Nagkakaisang Empleyado ng Wellcome-DFA, G.R. No. 149349, March 11, 2005).

(source: Excerpts from Reviewers found in the Internet)